Excerpts of the TN Supreme Court Ruling

IN THE SUPREME COURT OF TENNESSEE AT JACKSON October 4, 2006 Session Heard at Nashville

The opinion of the court was delivered by: William M. Barker, Chief Justice

On January 28, 1999, A.M.H. was born. Shortly after the birth, the mother told the Mid-South counselor that A.M.H. was not to be placed for adoption. The hospital records verify that A.M.H. was not to be placed for adoption. Instead, the parents desired help with the care of their child for six to twelve months while they tried to regain financial stability. Consequently, on February 24, 1999, when A.M.H. was four weeks old, the parents went to juvenile court and explained that they could not afford to care for A.M.H. and wanted temporary foster care. Rather than contacting the Department of Children's Services, the juvenile court officer telephoned Mid-South, which agreed to provide three months of foster care for A.M.H. That same day, the parents entered into an "interim care agreement" with Mid-South that specifically stated that the agreement did not terminate parental rights. A.M.H. was placed in the foster care home of the appellees, Jerry L. Baker and Louise K. Baker, the couple now seeking the termination of parental rights and the adoption of A.M.H.

After placing A.M.H. with the Bakers, the parents visited her regularly in the Bakers' home, consistently bringing food and gifts and taking photographs at every visit. The father had obtained a part-time job with the University of Memphis, and, despite the absence of an order requiring the parents to provide child support to Mid-South or the Bakers, the parents attempted to give the Bakers $300 in cash for the care of A.M.H.; the Bakers would not accept the money. In April of 1999, the father was was fired from his part-time job with the university. After the father's firing, the parents were living on the approximate $400 a month that the mother earned as a waitress.

Because their financial condition was not improving, the parents decided to send A.M.H. to China to have relatives care for her temporarily. The father testified that in May of 1999, Mr. Baker told the father that it was a bad idea to send A.M.H. to China and that the Bakers would keep A.M.H. until the father graduated from the university.

On June 2, 1999, the father of A.M.H., the Bakers, the Mid-South counselor, and Mid-South's attorney met to explain to the father the legal effect of granting the Bakers temporary custody.

On June 4, 1999, Mid-South's attorney went with the Bakers and the parents of A.M.H. to the Juvenile Court of Shelby County to obtain a consent order transferring custody of A.M.H. to the Bakers. A juvenile court officer drafted the "Petition for Custody" and a "Consent Order Awarding Custody." The consent order does not mention child support or visitation. A juvenile court interpreter, the juvenile court officer, and Mid-South's attorney spoke with the mother privately before she signed the order; the mother was told that the order would enable the Bakers to obtain health insurance for A.M.H.

The Bakers testified that as part of the custody agreement, the parents agreed that the Bakers would raise A.M.H. until she was eighteen years old and that the child would refer to the Bakers as "mommy" and "daddy." Contrary to the Bakers' testimony, the juvenile court officer testified that the parents were not agreeing that the Bakers could raise A.M.H. until she was eighteen years old. Indeed, the juvenile court officer testified that the mother "was fairly adamant that at some point she wanted her child back." The mother testified as follows: "I was told I can get my daughter back at any time. I asked him three or four times about that." Finally, the juvenile court interpreter, Pastor Kenny Yao, testified that the mother understood the agreement to be temporary and for the purpose of obtaining medical insurance for A.M.H. An order transferring custody and awarding guardianship was entered by consent; there was no court hearing on the matter.

After the consent order was signed on June 4, 1999, Mrs. Baker began keeping notes after each weekly visit by the parents. Her first entry was on June 5, 1999, when she wrote, "Gained custody on June 4th, 1999." She documented the date, the exact time of arrival, and the time of departure of the parents after every visit. She documented the gifts the parents brought (such as food, formula, diapers, and books) and the acts of the parents, noting if they were attentive to A.M.H. or engaged in what she considered misconduct (such as giving the baby "inappropriate" things like a small necklace). Although the notes written by Mrs. Baker characterize the father as "pushy" and the mother as emotional, the notes generally portray the parents striving in the face of fairly adverse conditions to maintain a relationship with their child, familiarize her with their Chinese culture, and ensure her health and safety.

On October 3, 1999, the parents asked the Bakers if they could take A.M.H. out for the day on the next Sunday. The Bakers refused, and the mother began crying. Mrs. Baker's notes for that visit include the following:

We would like to get visits to every other week. We felt like they would wean away, but the last 2 visits we could see Casey [the mother] is wanting to come more. If Jack [the father] confronts us with the visit we are going to tell him this is the way its going to be and set rules for him. He is very pushy and overbearing.

The mother, through an interpreter at the trial, described her impressions during this time period as follows:

At [the time of the custody hearing, the Bakers] pretend to be really nice. I didn't know it was a trap, but after I signed the documents, they tear their pretended face . . . . In the first three months when we went and visit our daughter, they were really nice to us. . . . When they tricked us to sign the temporary custody order, they immediately tear their pretend face, and they picked the most inconvenient time for us [to visit] and they tried to shrink the time [of the visits] as short as they can.

The juvenile court officer testified that during this time period, the parents contacted her several times complaining about their visitation arrangement and expressing their desire to regain custody of A.M.H.

In November of 1999, when A.M.H. was ten months old, the father of A.M.H. asked Mr. Baker to return A.M.H. to the parents' custody. Mr. Baker responded that he and Mrs. Baker did not want to return A.M.H. and told the father not to mention his request to Mrs. Baker because she was pregnant. Mr. Baker also stated that he would hold the father responsible if Mrs. Baker had a miscarriage because she was worried about the custody situation. The father testified that he felt threatened and intimidated. The parents decided to wait for the Bakers' child to be born before pursuing the return of their daughter. The relationship between the parties continued to deteriorate.

On May 3, 2000, the parents went to the Juvenile Court of Shelby County and signed a petition alleging a change in circumstances and seeking custody of A.M.H. Mr. Baker contacted the father and requested a meeting; they met but could not reach an agreement as to custody or visitation. The Bakers contacted Mid-South's attorney to represent them at the custody hearing and to pursue the termination of the parents' rights to A.M.H. The parents, who were still having financial difficulties, did not have an attorney at the hearing to regain custody. At the hearing on June 28, 2000, the Court Appointed Special Advocate submitted a report recommending that the Bakers retain custody and the parents be allowed supervised visitation twice a week for four hours each visit. The father told the referee that they planned to send their daughter to China to live with relatives. After briefly questioning the father, the referee denied the petition. Upon Mid-South's attorney's advice, the Bakers did not file a petition to terminate parental rights at this time.

The parents continued to visit their daughter at the Bakers' home despite the increase in animosity between the parties. During that period, the father began working in Georgia and could not attend all of the visits with A.M.H. On August 1, 2000, after the mother refused Mrs. Baker's request that she leave one of these visits by a certain time, the police were called. After this incident, the father quit his job in Georgia because he feared their visitation with A.M.H. was in jeopardy.

Prior to January 28, 2001, A.M.H.'s second birthday, the parents requested to take their daughter for a family picture; they invited the Bakers to go with them and made an appointment at a photography studio. When the parents arrived with their son at the Bakers' home, they were told A.M.H. could not go because she was sick. The father testified to the following:

I said, "I won't - not today, I won't leave here. Until we have picture made, I won't leave here." And then he said, "I'm going to call the police." I said, "Call the police. I won't leave here."

The police were called, and the officer told the parents not to return to the Bakers' house or they would be arrested. The Bakers' answers to interrogatories state that the parents were instructed by the police "not to return to the home of the Bakers." The police officer testified at trial that, even though it was late afternoon when he arrived at the Bakers' home, he would have told the parents not to return "that day." There were no further visits. On June 20, 2001, four months and five days later, the Bakers filed a petition to terminate parental rights to A.M.H. This four-month lapse in visitation is the ground upon which the chancery court found abandonment of A.M.H. and terminated the parents' rights to their daughter.

Although the parents soon contacted the juvenile court and asked for assistance in regaining custody of A.M.H. On February 15, 2001, eighteen days after their last visit with A.M.H., the parents sent a letter to the juvenile court and to the media setting forth the history of the case and stating that they wanted A.M.H. returned so that they could return to China. The father testified that they went to juvenile court twice between February and April. On April 9, 2001, the parents again went to juvenile court; the mother was sobbing. The court officer prepared a petition to regain custody for the parents. The Bakers were notified of the petition on May 4, 2001.

On June 6, 2001, the parents appeared in juvenile court for the hearing on their custody petition. Had the matter been heard that day as scheduled, the four-month period required for statutory abandonment would not have run. The hearing was rescheduled, however, to accommodate the Bakers' attorney; understandably, the parents were very sad and disappointed. The parents appeared for the rescheduled hearing on June 22, 2001. The father testified, "We went there on time - actually, we went there before eight o'clock, my wife and I. We were very eager. We went there. We were ready to have the hearing, and we thought we could have our child back that day." However, two days previously (which was four months and five days after the parents' last visit with A.M.H.), the Bakers had filed a petition for adoption and termination of parental rights in chancery court. Consequently, rather than hear the modification of the custody petition, the juvenile court transferred the custody case to chancery court; the father testified, "Of course, my heart was broken." The chancery court did not rule on this custody petition until its final order terminating parental rights.

The filing of the petition for adoption and termination of parental rights by the Bakers began chancery court proceedings that would span thirty-two months and generate a technical record containing eleven volumes of motions, responses, and orders. The procedural history recounted in this opinion omits much of the actual litigation. The grounds alleged in the original petition seeking termination of the parents' rights were the parents' abandonment of A.M.H. by willfully failing to visit and the parents' abandonment of A.M.H. by willfully failing to support the child financially. The petition was later amended to assert grounds of termination based on the father's lack of legal status as a parent, the parents' mental incompetence, and the persistence of conditions preventing the child's reunification with the parents.

On February 7, 2002, upon the guardian ad litem's motion, the chancery court ordered the parents to surrender A.M.H.'s passport to the court and, upon the Bakers' motion, ordered the parents to pay $15,000 to the court for the guardian ad litem's fees, the DNA test, and the costs of the psychological evaluations. The father testified that it was impossible for the parents to pay the ordered $15,000 in fees, "especially after [the Bakers' attorney] subpoenaed us and all the local Chinese restaurants, and my wife lost her job as a waitress." The parents did not produce the passport. On February 8, 2002, the court entered an order (drafted by the Bakers' attorney) to show cause why the parents should not be found in contempt for refusing to surrender the passport. The order also appointed the Bakers as A.M.H.'s guardians and ordered that the parents have no contact with their daughter.

None of the witnesses could explain why the court ordered that the parents have no contact with their daughter. The guardian ad litem testified that she had read a book about Chinese girls being placed in orphanages and consequently was concerned that the parents wanted to return to China.

On February 20, 2002, the parents filed a motion for visitation. On February 22, the court ordered the parents incarcerated for failing to surrender A.M.H.'s passport; the parents surrendered the passport. Although there was a preliminary hearing on the matter in March 2002, the court did not rule on the motion for visitation, stating that it assumed there must have been a reason for the no contact order and that it was unable to decide the issue without more evidence. At the hearing, the court expressed concern about the parents' interest in press coverage. The father testified:

You asked me why [we contacted the press]. Because at that time, I knew very clearly that I could not get justice from [the judge]. I could not get it, and I was in a desperate situation. All I could turn to for help was the media. I was trying to get the media's attention in order to help me to get my daughter back.

On September 23, 2003, the parents were allowed a visit with A.M.H., which was monitored by Dr. Goldstein. On September 29, 2003, the parents filed another motion for visitation. On November 7, 2003, the parents filed a renewed motion for visitation. On December 1, 2003, the parents saw their daughter with the Bakers' children at a Wal-Mart. The mother said to the children, "That's my daughter. Give me my daughter." The oldest Baker child grabbed A.M.H. and screamed for help; the police were called. On January 27, 2004, the designated chancellor ruled on the motions for visitation and ordered that the parents were to have no contact with A.M.H. until after the trial.

The chancery court found that the parents willfully abandoned A.M.H. by failing to visit or provide support for the four months immediately preceding the filing of the Bakers' petition to terminate parental rights. The court concluded that it would be in A.M.H.'s best interest to terminate parental rights and allow her to remain with the Bakers. Further, the chancery court ruled that the petition to modify custody filed in the juvenile court on May 29, 2001, "is not well taken and should be denied and dismissed."

The Court of Appeals reversed the chancery court's ruling that the parents had abandoned A.M.H. in willfully failing to support her. However, the Court of Appeals affirmed the termination based on the parents' willful failure to visit their daughter for four months and held that termination was in the best interest of A.M.H. The Bakers do not appeal the lower courts' rulings on the unsuccessful grounds for termination. Consequently, the sole ground for termination presented in this Court is abandonment grounded on the parents' willful failure to visit A.M.H. for a period of four consecutive months immediately preceding the filing of the petition to terminate parental rights.

This undisputed evidence does not support a finding that the parents' failure to visit A.M.H. was willful. Where, as here, the parents' visits with their child have resulted in enmity between the parties and where the parents redirect their efforts at maintaining a parent-child relationship to the courts the evidence does not support a "willful failure to visit" as a ground for abandonment. Therefore, we hold that there has been no willful abandonment and reverse the termination of parental rights. Accordingly, the Petition for Adoption and Termination of Parental Rights is dismissed.

This evidence overwhelmingly shows that the parents' voluntary relinquishment of custody was entered as a temporary measure to provide health insurance for A.M.H. with the full intent that custody would be returned. Therefore, we hold that the parents of A.M.H. did not voluntarily transfer custody and guardianship of A.M.H. to the Bakers with knowledge of the consequences and, therefore, are entitled to superior rights to custody.

Here, the only evidence of substantial harm arises from the delay caused by the protracted litigation and the failure of the court system to protect the parent-child relationship throughout the proceedings. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers cannot constitute the substantial harm required to prevent the parents from regaining custody. We have previously rejected the contention that when a child has been in the custody of a non-parent for a significant period of time, a lesser standard may be applied in determining whether parental rights may be terminated. "Such a standard would increase the likelihood for delaying cases in order that the child remain" in the custody of the non-parent. The same reasoning applies in this situation.

The evidence at trial showed that the parents have overcome many obstacles to achieve financial stability and are ably taking care of their other two children. Given the lack of evidence of a threat of substantial harm to A.M.H. if she is returned to her parents, we conclude that physical custody of A.M.H. must be returned to the parents.